Advocate Dali Mpofu, the legal counsel of suspended Public Protector Advocate Busisiwe Mkhwebane, has hinted to the section 194 committee that Mkhwebane might take the legal route to ensure that President Cyril Ramaphosa appears before the parliamentary inquiry into her fitness to hold office.
This is after, on Tuesday, following a legal opinion, the committee decided that it would decline Mkhwebane’s request to subpoena Ramaphosa to testify before it.
On Wednesday, Mpofu said Mkhwebane’s legal team had agreed with the legal opinion that there was no legal impediment to the calling of Ramaphosa to testify and that the only legal impediment was the vote of the committee.
“In other words, the committee, knowing that it had no legal impediment, voted against calling the person – that obviously then becomes the only legal impediment to his calling,” said Mpofu.
The legal opinion presented to the committee by Parliament’s legal adviser Fatima Ebrahim read:
“Only evidence relevant to determining the veracity of the grounds of incompetence and/or misconduct set out in the motion should be put before the committee, and any evidence not so relevant, which may be placed before the committee, will be disregarded.”
Ebrahim said the committee may only use its constitutional powers to summon Ramaphosa or any other person to provide information that is necessary for it to determine the veracity of the charges.
The legal opinion left it to the committee to decide whether to call Ramaphosa or not.
Last month, Mkhwebane’s legal team wrote to Ramaphosa to come and give testimony about what it said were perjury allegations he made against her.
However, the state attorney declined the request, saying it did not meet the threshold. The legal team then wrote to committee chairperson, Qubudile Dyantyi last week, that he subpoena Ramaphosa.
Mpofu said they did not accept the decision that had been taken by the committee, and would have preferred to be allowed to clarify any issues that were not clear on why they wanted Ramaphosa to give testimony to the inquiry.
“And if there is such an opportunity still, we are asking for it for us to clarify further areas where there might have been a lack of clarity. Failing all that, in other words, if you’re not prepared to go that route, then obviously we will then take your letter [which communicated the decision of the committee] at face value as the final word on the issue, and then we will take whatever legal steps might be necessary to secure the presence of this necessary witness.”
Mpofu said the “fundamental mistake” being made was not whether Ramaphosa was deemed by the committee to be necessary as a witness, but that he formed part of the three witnesses who could appear before the committee.
And those included witnesses who could be called by evidence leaders, Mkhwebane’s legal team or the committee.
“So, the question as to whether the witnesses are necessary must be viewed from the point of view of the Public Protector, who is the person calling this particular witness who has just refused to come like any other witness.”
Mpofu also pointed out that Ramaphosa was not being called in his capacity as the president of the country, but as a citizen:
“That’s really all,” he said. Ramaposa, said Mpofu, was not different from any other witnesses who had appeared before the committee, who had made allegations against Mkhwebane in affidavits and were called as witnesses to deal with those allegations. He added that it did not make sense that other witnesses were called, but Ramaphosa was not.
“The long and short is that we will advise you as soon as we’ve worked out our legal position in terms of the legal opinion that we’re formulating around these issues, hopefully before Friday.
You must just rest assured that we do not accept the decision and, to the extent that it might be challengeable, it will be challenged, and whatever implications that might have on this body, we will then address it further,” concluded Mpofu.
Dyantyi, in not so many words, said the committee stood by the decision it had taken not to subpoena Ramaphosa and would wait for a formal response from Mpofu, based on its decision.
‘Mkhwebane did not want to be called by her name’
Meanwhile, the committee heard from the acting head of corporate services at the Chapter 9 institution, Gumbi Tyelela, that Mkhwebane had fallen out with the former spokesperson of the Public Protector, Cleo Mosana, in 2019, just over two years into her contract that should have run until 2023.
This was after Mkhwebane said she could not work with Mosana as she was tired of doing her job and that she was also disrespectful towards her.
Tyelela was giving testimony under the charge that Mkhwebane was guilty of misconduct for harassing and victimising staff, and also that she had failed to protect staff from harassment and victimisation from former CEO Vussy Mahlangu.
“I recall it was on a Monday morning when I was called to the PP [Public Protector] boardroom, just after 8am. Present were both Ms Mosana and the then chief of staff, Linda Molelekoa.
The PP came in. She was upset and indicated that she no longer wanted to work with Ms Mosana as she did not want to be doing her work and that Ms Mosana was disrespecting her by calling her by her first name, Busisiwe.
She indicated that Ms Mosana must go home and serve her notice from there.” Tyelela said:
He had warned Mkhwebane that she had just dismissed Mosana without following any process, “and that she could not do so”.
Mkhwebane insisted that she did not want to work with Mosana, said Tyelela, and it was agreed that Mosana would be redeployed to another position, but she did not want to be transferred and wanted to remain in Mkhwebane’s private office.
“She wanted a meeting with the PP to find out what she had done, but we cautioned her against this as the PP had clearly indicated that she no longer wanted to work with her.” Mosana no longer works at the office of the Public Protector and there is a court matter pending, related to her dismissal.
However, during cross-examination, Mpofu said the spokesperson’s job – located in Mkhwebane’s office – was one of those that required a “personal chemistry”.
He said there had been a “problem” between Mosana and Mkhwebane. “[There was] some kind of breakdown; let’s call it that. Maybe that’s too harsh. Let’s say the relationship was not working,” said Mpofu, to which Tyelela agreed.
Mpofu said, even though he did not know what the facts were that had led to the breakdown of the relationship between the two, he assumed that there was back and forth between them because of non-delivery from Mosana and that, as a senior, Mkhwebane might have given up and wanted to work with someone who she would not need to “spoon-feed”.Again, Tyelela agreed.
“And this, as far as the second issue is concerned, I mean, if it is true, again, even I don’t know if it’s true.” Mpofu asked:
“Yes,” responded Tyelela.
“In fact, in this committee, it’s even worse. You’re not even allowed to call the chairperson ‘you’ apparently, but it wasn’t that bad that at the Public Protector, you are able to say to the Public Protector, ‘you have just effectively dismissed Miss Mosana’. You couldn’t call her by her first name, but you could say ‘you’?” asked Mpofu. Tyelela said that was correct.
Mpofu said certain employers might not mind being called by their first names but that was not the case for some if they had not given “permission” for it. He said, for example, at the section 194 inquiry, no one was allowed to call the chairperson by his name.
The inquiry continues on Thursday.